America
is facing potentially the gravest constitutional crisis in her history.
Barack Obama must either stand up in a public forum and prove, with
conclusive documentary evidence, that he is “a natural born Citizen”
of the United States who has not renounced his American citizenship—or
he must step down as the Democratic Party’s candidate for President
of the United States—preferably before the election is held,
and in any event before the Electoral College meets. Because, pursuant
to the Constitution, only “a natural born Citizen, or a Citizen
of the United States at the time of the Adoption of th[e] Constitution,
shall be eligible to the Office of President” (Article II, Section
1, Clause 4). And Obama clearly was not “a Citizen of the United
States at the time of the Adoption of th[e] Constitution.”

Whether
the evidence will show that Obama is, or is not, “a natural born
Citizen” who has never renounced his American citizenship is an
open question. The arguments on both sides are as yet speculative. But
Obama’s stubborn refusal to provide what he claims is “his
own” country with conclusive proof on that score compels the presumption
that he knows, or at least strongly suspects, that no sufficient evidence
in his favor exists. After all, he is not being pressed to solve a problem
in quantum physics that is “above his pay grade,” but only
asked to provide the public with the original copy of some official
record that establishes his citizenship. The vast majority of Americans
could easily do so. Why will Obama not dispel the doubts about his eligibility—unless
he can not?

Now
that Obama’s citizenship has been seriously questioned, the burden
of proof rests squarely on his shoulders. The “burden of establishing
a delegation of power to the United States * * * is upon those making
the claim.” Bute v. Illinois, 333 U.S. 640, 653 (1948).
And if each of the General Government’s powers must be proven
(not simply presumed) to exist, then every requirement that the Constitution
sets for any individual’s exercise of those powers must also be
proven (not simply presumed) to be fully satisfied before that
individual may exercise any of those powers. The Constitution’s
command that “[n]o Person except a natural born Citizen * * *
shall be eligible to the Office of President” is an absolute prohibition
against the exercise of each and every Presidential power by certain
unqualified individuals. Actually (not simply presumptively
or speculatively) being “a natural born Citizen” is the
condition precedent sine qua non for avoiding this prohibition.
Therefore, anyone who claims eligibility for “the Office of President”
must, when credibly challenged, establish his qualifications in this
regard with sufficient evidence.

In
disposing of the lawsuit Berg v. Obama, which squarely presents
the question of Obama’s true citizenship, the presiding judge
complained that Berg “would have us derail the democratic process
by invalidating a candidate for whom millions of people voted and who
underwent excessive vetting during what was one of the most hotly contested
presidential primary in living memory.” This is exceptionally
thin hogwash. A proper judicial inquiry into Obama’s eligibility
for “the Office of President” will not deny his supporters
a “right” to vote for him—rather, it will determine
whether they have any such “right” at all. For, just as
Obama’s “right” to stand for election to “the
Office of President” is contingent upon his being “a natural
born Citizen,” so too are the “rights” of his partisans
to vote for him contingent upon whether he is even eligible for that
“Office.” If Obama is ineligible, then no one
can claim any “right” to vote for him. Indeed, in that case
every American who does vote has a constitutional duty to vote against
him.

The
judge in Berg v. Obama dismissed the case, not because Obama has actually
proven that he is eligible for “the Office of President,”
but instead because, simply as a voter, Berg supposedly lacks “standing”
to challenge Obama’s eligibility:

regardless
of questions of causation, the grievance remains too generalized to
establish the existence of an injury in fact. * ** [A] candidate’s
ineligibility under the Natural Born Citizen Clause does not result
in an injury in fact to voters. By extension, the theoretical constitutional
harm experienced by voters does not change as the candidacy of an allegedly
ineligible candidate progresses from the primaries to the general election.

This
pronouncement does not rise to the level of hogwash.

First,
the Constitution mandates that “[t]he judicial Power shall extend
to all Cases, in Law and Equity, arising under this Constitution”
(Article III, Section 2, Clause 1). Berg’s suit plainly “aris[es]
under th[e] Constitution,” in the sense of raising a critical
constitutional issue. So the only question is whether his suit is a
constitutional “Case[ ].” The present judicial test for
whether a litigant’s claim constitutes a constitutional “Case[
]” comes under the rubric of “standing”—a litigant
with “standing” may proceed; one without “standing”
may not. “Standing,” however, is not a term found anywhere
in the Constitution. Neither are the specifics of the doctrine of “standing,”
as they have been elaborated in judicial decision after judicial decision,
to be found there. Rather, the test for “standing” is almost
entirely a judicial invention.

True
enough, the test for “standing” is not as ridiculous as
the judiciary’s so-called “compelling governmental interest
test,” which licenses public officials to abridge individuals’
constitutional rights and thereby exercise powers the Constitution withholds
from those officials, which has no basis whatsoever in the Constitution,
and which is actually anti-constitutional. Neither is the doctrine
of “standing” as abusive as the “immunities”
judges have cut from whole cloth for public officials who violate their
constitutional “Oath[s] or Affirmation[s], to support this Constitution”
(Article VI, Clause 3)—in the face of the Constitution’s
explicit limitation on official immunities (Article I, Section 6, Clause
1). For the Constitution does require that a litigant must present a
true “Case[ ].” Yet, because the test for “standing”
is largely a contrivance of all-too-fallible men and women, its specifics
can be changed as easily as they were adopted, when they are found to
be faulty. And they must be changed if the consequences of judicial
ignorance, inertia, and inaction are not to endanger America’s
constitutional form of government. Which is precisely the situation
here, inasmuch as the purported “election” of Obama as President,
notwithstanding his ineligibility for that office, not only will render
illegitimate the Executive Branch of the General Government, but also
will render impotent its Legislative Branch (as explained below).

Second, the notion upon which the judge in Berg v. Obama fastened—namely,
that Berg’s “grievance remains too generalized to establish
the existence of an injury in fact,” i.e., if everyone
is injured or potentially injured then no one has “standing”—is
absurd on its face.

To
be sure, no one has yet voted for Obama in the general election. But
does that mean that no one in any group smaller than the general pool
of America’s voters in its entirety has suffered specific harm
from Obama’s participation in the electoral process to date? Or
will suffer such harm from his continuing participation? What about
the Democrats who voted for Hillary Clinton as their party’s nominee,
but were saddled with Obama because other Democrats voted for him even
though they could not legally have done so if his lack of eligibility
for “the Office of President” had been judicially determined
before the Democratic primaries or convention? What about the States
that have registered Obama as a legitimate candidate for President,
but will have been deceived, perhaps even defrauded, if he is proven
not to be “a natural born Citizen”? And as far as the general
election is concerned, what about the voters among erstwhile Republicans
and Independents who do not want John McCain as President, and therefore
will vote for Obama (or any Democrat, for that matter) as “the
lesser of two evils,” but who later on may have their votes effectively
thrown out, and may have to suffer McCain’s being declared the
winner of the election, if Obama’s ineligibility is established?
Or what about those voters who made monetary contributions to Obama’s
campaign, but may at length discover that their funds went, not only
to an ineligible candidate, but to one who knew he was ineligible?

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These
obvious harms pale into insignificance, however, compared to the national
disaster of having an outright usurper purportedly
“elected” as “President.” In this situation,
it is downright idiocy to claim, as did the judge in Berg v. Obama,
that a “generalized” injury somehow constitutes no judicially
cognizable injury at all. Self-evidently, to claim that a “generalized”
grievance negates “the existence of an injury in fact” is
patently illogical—for if everyone in any group can complain of
the same harm of which any one of them can complain, then the existence
of some harm cannot be denied; and the more people who can complain
of that harm, the greater the aggregate or cumulative seriousness of
the injury. The whole may not be greater than the sum of its parts;
but it is at least equal to that sum! Moreover, for a judge to rule
that no injury redressable in a court of law exists, precisely because
everyone in America will be subjected to an individual
posing as “the President” but who constitutionally cannot
be (and therefore is not) the President, sets America on the course
of judicially assisted political suicide. If Obama turns out to be nothing
more than an usurper who has fraudulently seized control of the Presidency,
not only will the Constitution have been egregiously flouted, but also
this whole country could be, likely will be, destroyed as a consequence.
And if this country is even credibly threatened with destruction, every
American will be harmed—irretrievably, should the threat become
actuality—including those who voted or intend to vote for
Obama, who are also part of We the People. Therefore, in this situation,
any and every American must have “standing” to demand—and
must demand, both in judicial fora and in the fora of public opinion—that
Obama immediately and conclusively prove himself eligible for
“the Office of President.”

Utterly
imbecilic as an alternative is the judge’s prescription in Berg
v. Obama that,

[i]f,
through the political process, Congress determines that citizens, voters,
or party members should police the Constitution’s eligibility
requirements for the Presidency, then it is free to pass laws conferring
standing on individuals like [Berg]. Until that time, voters do not
have standing to bring the sort of challenge that [Berg] attempts to
bring * * * .

Recall
that this selfsame judge held that Berg has no constitutional “Case[
]” because he has no “standing,” and that he has no
“standing” because he has no “injury in fact,”
only a “generalized” “grievance.” This purports
to be a finding of constitutional law: namely, that constitutionally
no “Case[ ]” exists. How, then, can Congress constitutionally
grant “standing” to individuals such as Berg, when the courts
(assuming the Berg decision is upheld on appeal) have ruled that those
individuals have no “standing”? If “standing”
is a constitutional conception, and the courts deny that “standing”
exists in a situation such as this, and the courts have the final say
as to what the Constitution means—then Congress lacks any power
to contradict them. Congress cannot instruct the courts to exercise
jurisdiction beyond what the Constitution includes within “the
judicial Power.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-180
(1803).

In
fact, though, a Congressional instruction is entirely unnecessary. Every
American has what lawyers call “an implied cause of action”—directly
under Article II, Section 1, Clause 4 of the Constitution—to require
that anyone standing for “the Office of President” must
verify his eligibility for that position, at least when serious allegations
have been put forward that he is not eligible, and he has otherwise
refused to refute those allegations with evidence that should be readily
available if he is eligible. That “Case[ ]” is one the Constitution
itself defines. And the Constitution must be enforceable in such a “Case[
]” in a timely manner, by anyone who cares to seek enforcement,
because of the horrendous consequences that will ensue if it is flouted.

What
are some of those consequences?

First,
if Obama is not “a natural born Citizen” or has renounced
such citizenship, he is simply not eligible for “the
Office of President” (Article II, Section 1, Clause 4). That being
so, he cannot be “elected” by the voters, by the
Electoral College, or by the House of Representatives (see Amendment
XII). For neither the voters, nor the Electors, nor Members of the House
can change the constitutional requirement, even by unanimous vote inter
sese (see Article V). If, nonetheless, the voters, the Electors,
or the Members of the House purport to “elect” Obama, he
will be nothing but an usurper, because the Constitution defines
him as such. And he can never become anything else, because an usurper
cannot gain legitimacy if even all of the country aid, abets, accedes
to, or acquiesces in his usurpation.

Second,
if Obama dares to take the Presidential “Oath or Affirmation”
of office, knowing that he is not “a natural born Citizen,”
he will commit the crime of perjury or false swearing (see Article II,
Section 1, Clause 7). For, being ineligible for “the Office of
President, he cannot “faithfully execute the Office of President
of the United States,” or even execute it at all, to any degree.
Thus, his very act of taking the “Oath or Affirmation” will
be a violation thereof! So, even if the Chief Justice of the Supreme
Court himself looks the other way and administers the “Oath or
Affirmation,” Obama will derive no authority whatsoever from it.

Third,
his purported “Oath or Affirmation” being perjured from
the beginning, Obama’s every subsequent act in the usurped “Office
of President” will be a criminal offense under Title 18, United
States Code, Section 242, which provides that:

[w]hoever,
under color of any law, statute, ordinance, regulation, or custom, willfully
subjects any person in any State, Territory, Commonwealth, Possession,
or District to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United States
* * * shall be fined * * * or imprisoned not more than one year, or
both; and if bodily injury results from the acts committed in violation
of this section or if such acts include the use, attempted use, or threatened
use of a dangerous weapon, explosives, or fire, shall be fined * * *
or imprisoned not more than ten years, or both; and if death results
from the acts committed in violation of this section or if such acts
include kidnapping or an attempt to kidnap, * * *, or an attempt to
kill, shall be fined * * * or imprisoned for any term of years or for
life, or both, or may be sentenced to death.

Plainly
enough, every supposedly “official” act performed by an
usurper in the President’s chair will be an act “under color
of law” that necessarily and unavoidably “subjects [some]
person * * * to the deprivation of [some] rights, privileges, or immunities
secured or protected by the Constitution * * * of the United States”—in
the most general case, of the constitutional “right[ ]”
to an eligible and duly elected individual serving as President, and
the corresponding constitutional “immunit[y]” from subjection
to an usurper pretending to be “the President.”

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Fourth,
if he turns out to be nothing but an usurper acting in the guise of
“the President,” Obama will not constitutionally be the
“Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the actual
Service of the United States” (see Article II, Section 2, Clause
1). Therefore, he will be entitled to no obedience whatsoever from anyone
in those forces. Indeed, for officers or men to follow any of his purported
“orders” will constitute a serious breach of military discipline—and
in extreme circumstances perhaps even “war crimes.” In addition,
no one in any civilian agency in the Executive Branch of the General
Government will be required to put into effect any of Obama’s
purported “proclamations,” “executive orders,”
or “directives.”

Fifth,
as nothing but an usurper (if he becomes one), Obama will have no conceivable
authority “to make Treaties”, or to “nominate, and
* * * appoint Ambassadors, other public Ministers and Consuls, Judges
of the Supreme Court, and all other Officers of the United States, whose
Appointments are not * * * otherwise provided for [in the Constitution]”
(Article II, Section 2, Clause 2). And therefore any “Treaties”
or “nominat[ions], and * * * appoint[ments]” he purports
to “make” will be void ab initio, no matter what
the Senate does, because the Senate can neither authorize an usurper
to take such actions in the first place, nor thereafter ratify them.
One need not be a lawyer to foresee what further, perhaps irremediable,
chaos must ensue if an usurper, even with “the Advice and Consent
of the Senate”, unconstitutionally “appoint[s] * * * Judges
of the Supreme Court” whose votes thereafter make up the majorities
that wrongly decide critical “Cases” of constitutional law.

Sixth,
and perhaps most importantly, Congress can pass no law while an usurper
pretends to occupy “the Office of President.” The Constitution
provides that “[e]very Bill which shall have passed the House
of Representatives and the Senate, shall, before it become a Law, be
presented to the President of the United States” (Article I, Section
7, Clause 2). Not to an usurper posturing as “the President of
the United States,” but to the true and rightful President. If
no such true and rightful President occupies the White House, no “Bill”
will or can, “before it become a Law, be presented to [him].”
If no “Bill” is so presented, no “Bill” will
or can become a “Law.” And any purported “Law”
that the usurper “approve[s]” and “sign[s],”
or that Congress passes over the usurper’s “Objections,”
will be a nullity. Thus, if Obama deceitfully “enters office”
as an usurper, Congress will be rendered effectively impotent for as
long as it acquiesces in his pretenses as “President.”

Seventh,
if Obama does become an usurper posturing as “the President,”
Congress cannot even impeach him because, not being the actual President,
he cannot be “removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors” (see
Article II, Section 4). In that case, some other public officials would
have to arrest him—with physical force, if he would not go along
quietly—in order to prevent him from continuing his imposture.
Obviously, this could possibly lead to armed conflicts within the General
Government itself, or among the States and the people.

Eighth,
even did something approaching civil war not eventuate from Obama’s
hypothetical usurpation, if the Establishment allowed Obama to pretend
to be “the President,” and the people acquiesced in that
charade, just about everything that was done during his faux
“tenure in office” by anyone connected with the Executive
Branch of the General Government, and quite a bit done by the Legislative
Branch and perhaps the Judicial Branch as well, would be arguably illegitimate
and subject to being overturned when a constitutional President was
finally installed in office. The potential for chaos, both domestically
and internationally, arising out of this systemic uncertainty is breathtaking.

The
underlying problem will not be obviated if Obama, his partisans in the
Democratic Party, and his cheerleaders and cover-up artists in the big
media simply stonewall the issue of his (non)citizenship and contrive
for him to win the Presidential election. The cat is already out of
the bag and running all over the Internet. If he continues to dodge
the issue, Obama will be dogged with this question every day of his
purported “Presidency.” And inevitably the truth will
out. For the issue is too simple, the evidence (or lack of it)
too accessible. Either Obama can prove that he is “a natural born
Citizen” who has not renounced his citizenship; or he cannot.
And he will not be allowed to slip through with some doctored “birth
certificate” generated long after the alleged fact. On
a matter this important, Americans will demand that, before its authenticity
is accepted, any supposed documentary evidence of that sort be subjected
to reproducible forensic analyses conducted by reputable, independent
investigators and laboratories above any suspicion of being influenced
by or colluding with any public official, bureaucracy, political party,
or other special-interest organization whatsoever.

Berg
v. Obama may very well end up in the Supreme Court. Yet that ought
to be unnecessary. For Obama’s moral duty is to produce the evidence
of his citizenship sua sponte et instanter. Otherwise, he will be personally
responsible for all the consequences of his refusal to do so.

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Of
course, if Obama knows that he is not “a natural born Citizen”
who never renounced his American citizenship, then he also knows that
he and his henchmen have perpetrated numerous election-related frauds
throughout the country—the latest, still-ongoing one a colossal
swindle targeting the American people as a whole. If that is the case,
his refusal “to be a witness against himself” is perfectly
explicable and even defensible on the grounds of the Fifth Amendment.
Howsoever justified as a matter of criminal law, though, Obama’s
silence and inaction will not obviate the necessity for him to prove
his eligibility for “the Office of President.” The Constitution
may permit him to “take the Fifth;” but it will not suffer
him to employ that evasion as a means to usurp the Presidency of the
United States.

Edwin Vieira, Jr., holds four
degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard
Graduate School of Arts and Sciences), and J.D. (Harvard Law School).

For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations on
the uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.

He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us

He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash
of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com